leg in cast


We previously wrote about work-related injuries and explained some of the legal background. Specifically, we explained that if a worker in New Jersey wants to bring a claim for personal injuries after an accident while on the job, the matter will usually be a worker’s compensation claim against the employer and possibly an additional law suit in court against any other people or companies who are not the employer or a co-worker. However, there are times when an injured worker could directly sue an employer in court for their injuries and avoid the worker’s compensation administrative process (there are several reasons why a person may want to do this, but that is a topic we will cover in a future post).

A recent case decided by the New Jersey Supreme Court dealt with this very issue, Estate of Kotsovask v. Liebman. In that case, Ms. Kosovska was working as a live-in maid for an elderly man. She was paid in cash every week and performed various domestic chores and accompanied the man on errands. Unfortunately, the man ended up accidentally hitting Ms. Kosovska with his car and the injuries ultimately killed her. There was no written employment contract and it was unclear whether Ms. Kosovska was an “employee” or an “independent contractor” under the law. If she was an employee, the estate would have to bring the claim as a worker’s compensation claim. If she was an independent contractor, then the estate could collect damages in civil court.

It was not clear from the outset what her status was. The Estate claimed that she was an independent contractor and Mr. Liebman’s attorneys claimed that she was an employee. His lawyers – after a lawsuit was filed – also took the position that the case should have been thrown out of court because she was an employee. The trial judge did not agree and the case ultimately went to trial where a jury found that Ms. Kosovska was actually an independent contractor and awarded damages to the estate (the damages were significantly higher in civil court as they are designed to fully compensate the family as opposed to a worker’s comp claim that would have resulted is something more akin to a small death benefit). After appeal, the Supreme Court ultimately held that when there is a dispute about employment status, the case can certainly be brought in civil court; an injured worker is not forced to bring a worker’s compensation claim just because the defendant claims that the worker was an “employee”.

What we learn from this case is that injured workers sometimes have the flexibility to resolve these disputes in the superior court. Unless the superior court rules that the worker is indeed an “employee”, the case will remain in superior court and proceed to trial.